A state cannot be sued for copyright infringement because Congress did not validly abrogate sovereign immunity when it enacted the Copyright Remedy Clarification Act of 1990, the Supreme Court held Monday in Allen v. Cooper. Justice Elena Kagan wrote the opinion for six justices; Justice Clarence Thomas joined the opinion in part; and Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, concurred in the judgment.

The case arose from a salvage operation for Blackbeard’s flagship Queen Anne’s Revenge, which sank off the coast of North Carolina in 1718 after a “reign over the seas” that was “short-lived.” Petitioner Frederick Allen was hired to document the salvage operation. He sued North Carolina when the state published some of his photos and videos without his permission and without payment.

The court held that Allen’s argument that the CRCA validly abrogated state sovereign immunity was foreclosed by the court’s 1999 decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, which held that the Patent Remedy Act of 1990, enacted at the same time as the CRCA, did not validly abrogate sovereign immunity. Florida Prepaid held that Congress could not abrogate sovereign immunity using its powers under the intellectual property clause of Article I, Section 8 of the Constitution, which empowers Congress to secure to authors and inventors the exclusive rights in their writings and discoveries. The power to protect copyrights and patents derives from one constitutional source. If Congress cannot abrogate for patents, as Florida Prepaid established, it cannot abrogate for copyrights, and for the same reasons.

Allen argued that the court’s subsequent decision in Central Va. Community College v. Katz, holding that Article I’s bankruptcy clause enables Congress to subject states to bankruptcy proceedings, changed the analysis. But Kagan said that Katz reflected “bankruptcy exceptionalism” and rested on the “singular nature” of bankruptcy jurisdiction. This includes bankruptcy’s origins as “in rem” proceedings (focusing on the debtor and its estate, not the creditors) that did not implicate state sovereignty, and the bankruptcy clause’s “unique history” of creating a uniform federal system in the face of states’ “wildly divergent schemes.” Moreover, abrogation under Katz came not from Congress, but from the Constitution itself. The result was a “good-for-one-clause-only holding” that did not apply to other congressional powers under Section 8.

Even had Katz changed the analysis and required a clause-by-clause approach, Florida Prepaid controls the intellectual property clause, and there are no differences between patents and copyrights within that clause. Allen could prevail only if he could convince the court to overrule its precedent in Florida Prepaid. But he failed to provide the “special justification” necessary to overcome stare decisis, beyond the “belief” that precedent was wrongly decided and that the court would realize as much if it reconsidered Florida Prepaid.

The CRCA also did not validly abrogate under Section 5 of the 14th Amendment because it lacked the necessary congruence and proportionality between the constitutional injury to be prevented or remedied and the statutory means adopted. The CRCA sought to further the 14th Amendment prohibition on states’ depriving persons of property without due process. But not all copyright infringements violate the due process clause; only intentional infringement for which the state fails to offer an adequate remedy does. But the CRCA, like the contemporaneous patent law declared invalid in Florida Prepaid, subjects states to suit for all infringements.

Florida Prepaid held that because Congress failed to identify a pattern of constitutionally violative intentional patent infringements, the patent law was “out of all proportion” to the problem and “swept too far.” The outcome in this case could have been different if the CRCA were based on a legislative record containing materially stronger evidence of unconstitutional infringement.

Before enacting the CRCA, Congress solicited a report from the Register of Copyrights, which concluded that copyright holders would suffer immediate harm if unable to sue infringing states. But that report is insufficient to “flip Florida Prepaid’s outcome.” There was little evidence of state infringement and no concern for whether those few state infringements were the sort of intentional infringements that violate due process, as opposed to honest or innocent mistakes. The legislative record also contained no information about whether states provide adequate remedies for any infringements, which would eliminate any constitutional harm. The CRCA failed to strike a congruent-and-proportional balance, just as the patent law had failed to strike that balance; both are of “indiscriminate scope” that is “‘out of proportion’ to any due process problem.”

The court allowed that Congress could pass a valid copyright abrogation. The CRCA was enacted in 1990, before limitations on Article I abrogation and before the creation of Section 5’s congruence-and-proportionality test. But Congress now knows the rules and might enact a tailored statute that respects constitutional limits while “bring[ing] digital Blackbeards to justice.”

Thomas concurred in part and concurred in the judgment, declining to join the court’s “opinion in its entirety.” He made three points. He rejected the majority’s demand for “special justifications” before overruling precedent, insisting that it is enough that a decision is “demonstrably erroneous.” Florida Prepaid should not be reconsidered, and it controls, because it is not demonstrably erroneous. Thomas did not join the discussion of future copyright legislation, deeming it inappropriate to “purport to advise Congress on how it might exercise its legislative authority” or to bless hypothetical statutes. Finally, he argued that the question of whether copyrights are property within the due process clause remains open.

Breyer, joined by Ginsburg, concurred in the judgment. He argued that the court’s sovereign-immunity precedents are “amiss,” continuing the objections he raised when the court developed this line of doctrine more than 20 years ago. It should not be that “when proven to have pirated intellectual property,” states cannot be made “to pay for what they plundered.” But Breyer recognized that his “longstanding view has not carried the day” and that Florida Prepaid controls.

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.